Taupau v Police - [2019] NZHC 2237

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2019-419-000054

[2019] NZHC 2237

BETWEEN
MIKA TAUPAU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 6 September 2019

Counsel:

GD Prentice for Appellant SF Gilbert for Respondent

Judgment:

6 September 2019

JUDGMENT OF DOWNS J

This judgment was delivered by me on Friday, 6 September 2019 at 3 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:
GD Prentice, Hamilton. Crown Solicitor, Hamilton.

TAUPAU v POLICE [2019] NZHC 2237 [6 September 2019]

[1] On 25 June 2019, Judge A S Menzies sentenced Mr Mika Taupau for driving while disqualified, driving with excess breath alcohol, and intentional damage.1 The Judge imprisoned Mr Taupau for 15 months and disqualified him from driving for three years. Mr Taupau appeals the disqualification period; he does not appeal the prison sentence.

[2] The Judge did not provide reasons in relation to the disqualification period, most likely because there was significant argument as to whether Mr Taupau should go to jail. So, the Judge focussed on that aspect.

[3] Section 31 of the Sentencing Act 2002 requires a Judge to give reasons for the imposition of a sentence or any other means of dealing with the defendant. It follows some justification for the length of the disqualification period ought to have been given, however brief, in a busy list court. For this reason, I approach the task afresh.

[4] Mr Taupau committed the offences in the early hours of 18 October 2018. A checkpoint revealed breath alcohol of 790 micrograms. Mr Taupau was subject to release conditions and an 18-month disqualification period for driving with excess breath alcohol in 2017. The offences represent Mr Taupau’s ninth conviction for driving with excess breath alcohol and eighth for driving while disqualified.

[5] Mr Taupau contends his history reveals some progress because he did not drive with excess breath alcohol between 2013 and August 2017. I disagree. Mr Taupau spent at least some of this time in prison (through a series of short prison sentences).

[6] Mr Taupau submits the offending was unremarkable; there was no bad driving. I accept this submission but note the presence of another aggravating factor. As observed, Mr Taupau was subject to release conditions for like offending.

[7] Mr Taupau also submits the pre-sentence report has positive aspects. For example, Mr Taupau’s employer “spoke highly of him”. His partner described Mr Taupau as “wonderful”. The latter does not have the purchase it might otherwise

1 Police v Taupau [2019] NZDC 12235.

attract. Mr Taupau has a history of domestic violence. The former has general relevance.

[8] Both parties invite attention to a host of cases, including R v Stone2 and Russell v Police.3 Mr Stone drove with a breath alcohol level of 723 micrograms. There was no bad driving, but the car was “overloaded” with young people. The excess breath alcohol conviction was Mr Stone’s eighth. Mr Stone received home detention. Mr Russell drove with a breath alcohol level of 930…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 2237
Decision Date: 6 September 2019

CaseChat Overview and Summary

Mika Taupau appeals against a disqualification period imposed on him by the District Court for various driving offences. Taupau does not appeal the 15-month prison sentence. Taupau’s counsel submits that the District Court did not provide reasons for the disqualification period, which is required under section 31 of the Sentencing Act 2002. The High Court approaches the task afresh, considering Taupau’s history of driving offences, including nine convictions for driving with excess breath alcohol and eight for driving while disqualified. Taupau’s counsel argues that his history reveals some progress, but the High Court disagrees, noting that Taupau spent some of the intervening time in prison. Taupau also submits that the offending was unremarkable, but the High Court notes that Taupau was subject to release conditions for like offending. The High Court finds that Taupau has a bad record of offending contrary to the Land Transport Act 1998 and, in light of the precedents cited, imposes the same three-year disqualification period.

The appeal is dismissed.

Orders